Petition for a Writ of Certiorari — Slenker v. Grand Lodge of Illinois of the Independent Order of Odd Fellows
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Supreme Court of the United States
Octoszr Term, A. D. 1952
Be, 2°)
FRED SLENKER and ELIZABETH SLENKER,
Petitioners,
vs.
GRAND LODGE OF THE STATE OF ILLINOIS OF
THE INDEPENDENT ORDER OF ODD FELLOWS,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ILLINOIS.
Hues M. Marcuerr,
Davw F. Marcuerrt, Jr.
Watrter F. Dopp,
Husert L. Wu,
Chicago, Il.
Dated: Chicago, Ill, July 14, 1952.
i Ereren-y-samemenenere
Baanagp & Muse, 33 S. Market St., Chicago 6. FR anklin 2-0562
INDEX
PAGE
OO TRE ioe te Sir ne 1
EE SIs oc iskteeteucns accesiide cael 3
Uo PUN ies aa raw net vaee Ls ake 3
PURE MONG oa ices fees aA ceteeeks 3
Order Dismissing Writ of Error Void........... 4
IY MUO. oS os cc adoelechcdnceeuteoiens, 8
OND: PUMICE, oes iiiewsecncesddeecdiebaccers 10
Rule of Decision in Illinois......................... 13
reas Oe SHON EN IS sis Fh c bv bos Cob na taneerinc 14
Liability and Immunity of Private Charitable Corpora-
SR MR iit iddnsacdcecchbetscwince sc 15
EL Web veanbuusédecchisatacercccet ne sect 16
PE Lditinsibennhenantakudwiecendkedeccot let 17
NNN. 5 Jc ack die Bashi ddan oeoieuce es 18
DpeciBention of Wrrees. .......ccccccccccccccccsccss 19
Reasons Relied on for Allowance of Writ......... ie
I. State of Illinois provides no means by which
common law policy of that state may be chal-
lenged or tested or governed by or subjected to
ii
PAGE
II. Fairly debatable federa! constitutional questions
of importance involving fundamental rights of
individual are presented for decision which this
Court alone has ultimate power to decide deter-
mination of which will affect law of about thirty-
two states which hold that under common law
policy of state private charitable corporations are
entitled to full or limited immunity to judgment
in action in tort under circumstances in which any
other private person, individual or corporate,
would be liable to judgment. .......--+++++eee+s 32
III. Immunity of a private corporation to judgment in
an action in tort is without foundation in the
common law and bars the enforcement of funda-
mental rights and requires an injured person who
otherwise would be entitled to judgment under
the ordinary rules of tort liability applicable for
or against all other private persons, individual
or corporate, in the same circumstances to make
an unreasonable contribution to the charitable
corporation against his will and is most unreason-
able when applied against a stranger to the insti-
tution or when immunity is limited to corpora-
tions not presently possessed of insurance or other
non-trust property. The State of Illinois, there-
fore, in enforcing any immunity to judgment
deprives an injured person of his fundamental
right to personal security and property without
due process of law and denies to him the equal
protection of its laws in violation of the Four-
teenth Amendment. ........-+++eeeeeeeeeeeeees 3
A. Immunity has no foundation in common law.. 3
iii
PAGE
B. Immunity bars enforcement of fundamental
right and requires person injured to make con-
tribution to charitable corporation against his
EE se dicade Voknseibeehardik balisdas coves bones 37
C. Immunity is most unreasonable when applied
against a stranger to the institution or when
immunity limited to corporations not currently
possessed of insurance or other non-trust -
SE He eevee ve sees e cede cuNevacéccveiees 38
D. Illinois, therefore, in enforcing any immunity
to judgment deprives an injured person of his
fundamental right to personal security and
property without due process of law........ 41
E. The State of Illinois, therefore, in enforcing
any immunity to judgment denies to an injured
person the equal protection of its laws....... 47
ID ies cnkie obie aia uhils deed clod a ccwadie’d vs kook 51
Cases CrTep
Altschuler v. Altschuler, 410 Ill. 169........ 9, 14, 18, 23, 32
Anderson v. Anderson, 180 Tenn. 56................
Bank of Columbia v. Okely, 4 Wheat (U.S.) 235...... 42
Barnard v. Michael, 392 Tl. 130.................... 3, 4
Brinkerhoff-Faris v. Hill, 281 U.S. 43................
Burket v. Reliance Bank & Trust Co., 366 Ill. 120...... 32
Chapralis v. City of Chicago, 389 Ill. 269............ 27
Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226...... 42, 43
City of Chicago v. Halsey, 25 Ill. 485................
Citizens Life Assurance Co. v. Brown (1904), A.C. 423. 35
Corcoran v. City of Chicago, 373 Ill. 567.............. 32
Corwin v. Rheims, 390 Ill. 205.................cc00- 4
4 < Oe Laundry Machinery Co. v. Koplin,
Rae pica Ce abeln ve heads Cob’ kdaccsbne '
Dartmouth College v. Woodward, 4 Wheat. (U.S.) a
\eeE Chae REALS N peDEOK pe hadsbbde bs 66 bb 000 uae 6, 42
Davidson v. New Orleans, 96 U.S. 97................ 41, 42
ae SU eer eee 10
De LaCour v. De LaCour, 363 Ill. 545................ 27
iv
PAGE
Freeson v. Scott County Drainage & Levee District,
rh RM Prerec rrr irre etre eee 4
French v. Barber Asphalt Paving Co., 181 U.S. 324.... 41
Frost v. Corporation Commission, 278 U.S. 515...... 48
Goodrich v. Sprague, 376 Ill. 80...........-2+-+0e 32
Greene v. Briggs, 1 Curtis (U.S.) 311..........+-.-+- 41
Gyure v. Sloan Valve Co., 367 Til. 489..........+-.++: 5
Gypsy Oil Co. v. Escoe, 275 U.S. 498...........0+ 4
Harding v. St. Louis Stockyards, 242 Ill, 444.......... 35
Hass Electric Co. v. Amusement Park, 236 Ill. 452. . .26, 29
Hosking v. Southern Pacific Co., 243 Ill. 320.......... 4
Henry W. Putnam Memorial Hospital, 34 F. 2d 927... 39
Hopkins v. Clemson Agricultural College, 221 U.S.
OD wc kccecawene docks eebcsa uses thvehssanenan 40, 47, 49
Uurtado v. California, 110 U.S. 516...............-.. 42
In re Paus’ Estate, 385 Ill. 550... 2.1... cece ee eee 27
In re Peterson, 253 U.S. 300. ..........ceeeeecceeees 42
Johnson v. Zerbst, 304 U.S. 464.......... cece eeeee 10
_ Jones v. Union Guano Co., Inc., 264 U.S. 171........-- 43
Kerner v. Thompson, 365 Ill. 149..............-00-- 7
Laneaster v. Waukegan & Southwestern Railway Co.,
) FO Ree rT rere Tere rT Tee
Lenhart v. Miller, 375 Ill. 346........cesseceeeeeees 4
Luken v. Lake Shore & Michigan S. Ry. Co., 248 Ill. 377 29
Market Street R. Co. v. Railroad Commission of Cali-
fornia, 324 U.S. 548. .......cccccccccccccccccccees 4
Margbia v. Mary Thompson Hospital, 309 Ill. 147..... 49
Mellvaine v. City Nat. Bank, 371 Ill. 565............ 25, 27
Moore v. Moyle, 405 Ill. 555........ 15, 25, 27, 30, 39, 40, 49
Moore v. Moyle, 399 Til. 250...........-..45- , 26, 27, 30
Mulliner v. Evangelischer Diakonniessenverein, 144
Milam. SOR... nccccvacsccestectessdcnvctseccdccess 46
How: (UB) BIB. vc cccvcccivcsscscccscccccceccess 4
Nevins v. City of Peoria, 41 Ill. 502...........-..+4- 35
Nicholson v. Good Samaritan Hospital, 145 Fla. 360... 44
Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S.
DE So ncnn:0c6oneesbeebeneeh «dihaenens seve seeeens 25
Oxman v. Baker County, 115 Ore. 436................ 7
Parker v. Illinois, 333 U.S. 571. .......ceeeceeeeeeees 10
Peterson v. Manhattan Life Ins. Co., 244 Til. 329... .7, 9, 14
People v. Callopy, 358 Ill. 11...........-eee eee eeeee 5
People v. Craig, 404 Ill. 505. .......... esses ee eeeee 5
People ex rel. Joyce v. Strasheim, 242 Ill. 359......... 42
People ex rel. Tinkoff v. Northwestern University, 396
Vv
Perlman v. Thomas Paper Stock Co., 378 Ill. 238...... 27
President and Trustees of Georgetown College v.
PA, See I dic oip eniv nda pda anaes cea
Prouty v. City of Chicago, 250 Ill. 222............... 38
Riddlesbarger v. Riddlesbarger, 410 Ill. 392.......... 27
Segal v. Chicago City Railway Co., 325 Ill. 43........ 32
Shelley v. Kraemer, 334 U.S. 1...............000c. 25, 43
— v. North Country ae ‘Hospital, 273
Se ge Re rat | Ranta 38
at v. Wiscasset, 74 Me. 140................... 40
Silva v. Providence Hospital of Oakland ........... 38, 46
Slenker v. Gordon, 344 Ill. App. 1.................. 3,15
Sprague v. Goodrich, 367 Ill. 80..................... 14
Standard Oil Co. v. Anderson, 212 U.S. 215.......... 35
State of Maine v. Cohen, 133 Me. 293................ 49
Stembridge v. State of Georgia, 72 S. Ot. 834......... 8
St. Mary’s Academy v. Solomon, 177 Colo. 463....... 40
Swain v. Hoberg, 380 Ill. 442...................... 5
The Wabash, St. Louis and Pacific Railway Company
2 + & & eee teas 37, 38
Truax v. Corrigan, 257 U.S. 312.............. 10, 43, 47
Twining v. New Jersey, 211 U.S. 78................ 41
Union Pacific R. Co. v. Public Commission of Mis-
WOU, TE He GUNES fb kod vccobasdPekencecscct..: 10
Ward v. Board of County Com’rs, 253 U.S. 17........ 10
Ward v. Sampson, 395 Ml. 353...................... +
Washington Home v. City of Chicago, 157 Ill. 414.... 36
Westervelt v. Gregg, 12 N.Y. 202.................... 42
vi
Inurno1is STaTUTES
PAGE
Ill. Rev. Stat, 1951
Ch. 28, Act of March 5, 1874..........eneeeeeeeees 13
Ch. 37, Sec. 6...... ccc cccccceccceccccccccccccces 6,7
Ch. 77, See. 8B.......cscccccccccvccsccccccccccccs 3
Ch. 77, Sec. 83.......ccceeeccceereeneereeesceeers 4
Ce. FF, Bite DE: cicccvecctvscveccecccvcvesccecccss 4
Ch. 110, See. au Didcness coeeuedssaucoeecsoucnee 18
Ch. 110, Sec. toa) Cates sesbnbekocescetabséaes 17
Ch. 110, See. 126.......ccccccccccccccscccccccces 5
Ch. 110, Bee. 198. .......ccccccccccccccccccvcccces 14
Ch. 110, Sec, 200. ....... cc ccccccccccccscccccceees 9
Ch. 110, Sec. 2100.12... cece cece cree ccncccevees 7
Ch. 110, Sec. 259.28. ....... cece eee cccceevecceeees 5
Ch. 110, Sec. 259.41. ........cccceeccee cn ccccccens 5
Ch. 110, Sec. 259.42.......ccccccccccccccccesccees 6
Ch. 110, Sec. 259.48........ccccccccccsesssccccecs 6
Ch. 130, Sec. 259.63........ccccccccccsscccccceces 8
Ch. 110, Sec. 259.70... 22... eee e cence cece cree eeeees 7
‘TEXTBOOKS
Bogert Trusts and Trustees, Vol. 2, Sec. 401.......... 38
Joel Prentiss Bishop, Non-Contract Law (1889)...... 34
Encyclopedia Americana, 1942 Ed. Vol. 1...........- 36
Encyclopedia Britannica, 14th Ed, Vol. 6...........- 35
— C. Gavit, Blackstone’s Commentaries on The
Dg 666666 6066600409 46055696 HO TOFD EESCO DOD OAC KE
Holpsworth’s Essays in Law and History, pp. 211-2... 34
Holtsworth, History of Engiish Law, 3rd. Ed., Vol. 3.. 36
Holgsworth, History of English Law, 3rd. Ed., Vol. 9.. 34
C. H. Mcllwain, Political Writings of James I, Vol.1.. 42
Mott, Due Process, Sec. 20, p. 293........++++0e+e0: 42, 43
Pollock and Maitland, History of English Law, 2d Ed.,
Supreme Court of the United States
Ocroser Term, A. D. 1952
No.
FRED SLENKER and ELIZABETH SLEN KER,
Petitioners,
vs.
GRAND LODGE OF THE STATE OF ILLINOIS OF
THE INDEPENDENT ORDER OF ODD FELLOWS,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ILLINOIS.
To the Honorable Chief Justice and Associate
Justices of the Supreme Court of the United States.
Your petitioners, Fred Slenker and Elizabeth Slenker,
respectfully pray for a writ of certiorari herein to review
a final order (Rec. 83) of the Supreme Court of Illinois,
being the highest court of said State, by which order said
court denied two motions (Rec. 39, 81) to vacate an order
(Rec. 38) dismissing a writ of error (Rec. 1) sued out
in said court to review a decision (Rec. 6) of the Ap-
pellate Court of Illinois, Second District, on federal and
state constitutional grounds (Ree. 300), by which decision
the said Appellate Court affirmed a judgment of the Cir-
cuit Court of Henry County, Illinois (Ree. 25), after
trial by jury (Ree. 7), notwithstanding verdicts in favor
of petitioners (Rec. 7), that petitioners’ complaint be
dismissed at their costs (Rec. 7); and to review said order
of dismissal (Rec. 38).
The action in the trial court was one for damages for
personal injuries sustained by petitioners in a collision
between their automobile and a car driven by an agent of
the respondent while engaged in carrying on the business
of the corporation and while acting within the scope of his
employment as a proximate result of his negligence (Rec.
7, 8). The cause of action accrued in Henry County,
Illinois. The trial court entered judgment for the defend-
ant notwithstanding verdicts totalling Twenty-four Thou-
sand Dollars ($24,000.00) in favor of petitioners on the
ground the defendant was a charitable corporation. Peti-
tioners appealed to the Illinois Appellate Court, Second
District, which affirmed the judgment on the ground the
defendant corporation was a charitable corporation whose
assets were all held in trust for the purposes of the
Independent Order of Odd Fellows and these assets had
to be protected (Ree. 74).
Petitioners after first exhausting all possibility of ob-
taining further review by appeal within the State judicial
system (Ree. 25, 27), sued out a writ of error (Ree. 1) in
the Supreme Court of Illinois to review the decision of the
Appellate Court on state and federal constitutional
grounds (Rec. 300), i.e., that the State of Illinois in en-
forcing any immunity to judgment deprives an injured
person of his fundamental right to personal security and
property without due process of law and den to him
the equal protection of the law, contending that the con-
stitutional questions had arisen for the first time in the
3
Appellate Court upon the rendition of the decision and the
extinction of any possibility of further review by appeal
without fault on the part of either of the petitioners (Ree.
302). The Supreme Court of Illinois on motion of respond-
ent (Rec. 28) dismissed the writ of error without opinion
(Ree. 38) and subsequently denied two motions of peti-
tioners to set aside the order of dismissal (Rec. 39, 81).
Petitioners seek further review by this court on certiorari
to reverse not only the order refusing to set aside the order
of dismissal but the order of dismissal as well (Ree. 83, 38).
OPINIONS BELOW.
The Supreme Court of Illinois dismissed the writ of
error without opinion. The opinion of the Appellate Court
of Illinois, Second District, is reported as Slenker v.
Gordon, 344 Ill. App. 1. It is printed in the record com-
mencing at page 6.
JURISDICTION.
Procedural Aspects
The Supreme Court of Illinois dismissed the writ of
error on January 16, 1952 (Rec. 38). This was a void
order because it was entered in violation of the rules of
court. (See discussion below at page 4). The term of
court expired on January 28, 1952 (Rec. 38). Prior to June
21, 1933, the order of dismissal, had it been a valid order,
would have become a conclusive adjudication upon the
expiration of the term. (Barnard v. Michael, 392 Ill. 130.)
It now could only become a conclusive adjudication upon
the expiration of thirty days from the date of its rendition,
ie., February 15, 1952 (Sec. 82, Ch. 77, Ill. Rev. Stat.
1951). On February 1, 1952 petitioners filed a motion and
4
supplemental motion to set aside and vacate the order of
dismissal (Rec. 39). Prior to June 21, 1933, the order of
dismissal, had it been a valid order, could have been modi-
fied, set aside or vacated prior to the expiration of the term
of court at which it was rendered (Corwin v. Rheims, 390
Ill. 205; Department of Public Works & Buildings v. Legg,
374 Ill. 306) or in pursuance of a motion made at that term
(Corwin v. Rheims, 390 Ill. 205; Hosking v. Southern Pacific
Co., 243 Ill. 320; Lenhart v. Miller, 375 Ill. 346). It there-
fore could now be modified, set aside or vacated in pur-
suance of a motion made within thirty days from the date
of its rendition (Sec. 83, Ch. 77, Ill. Rev. Stat. 1951). Prior
to June 21, 1933, the order of dismissal, if void, could have
been modified, set aside or vacated after the expiration of
the term at which it was rendered at any time. (Ward v.
Sampson, 395 Ill. 353; Barnard v. Michael, 392 Ill. 130.)
It therefore could now be modified, set aside or vacated
after the expiration of the term at which it was rendered
at any time (Sec. 84, Ch. 77, Ill. Rev. Stat. 1951). These
were denied on March 11, 1952 (Rec. 83). This is the final
order for purposes of determining when the time for filing
a Petition For Writ of Certiorari starts to run. Market
Street R. Co. v. Railroad Commission of California, 324
U.S. 548, 552; Gypsy Oil Co. v. Escoe, 275 U.S. 498, 499.
Time for filing a petition for writ of certiorari, which would
otherwise have expired June 9, 1952, was extended to and in-
cluding June 23, 1952, by order of Mr. Justice Minton dated
June 6, 1952 (Ree. 312). Further extension was granted
to and including July 16, 1952, by order of Mr. Justice
Jackson dated Junef], 1952.
The jurisdiction of this court is invoked under 28 U.S.C.
1257(3).
The Order Dismissing the Writ of Error was Void.
In Illinois the Supreme Court of the State ‘‘has not only
5
the inherent power to prescribe rules of practice and pro-
cedure, but the power is expressly conferred by the statute.
Ill. Rev. Stat. 1951, ©. 110, § 126. [Art. 1, Sec. 2(1) Civil
Practice Act 1951: ‘The Supreme Court of this State shall
have power to make rules of pleading, practice and pro-
cedure for the * * * Supreme Courts supplementary to but
not inconsistent with the provisions of this Act, and to
amend the same * * *.’] Such rules, when established, have
the force of law. People v. Callopy, 358 Ill. 11; Lancaster v.
Waukegan & Southwestern Railway Co., 132 Ill. 492.”
(Italics ours.) Gyure v. Sloam Valve Co., 367 Il. 489 ;
People v. Craig, 404 Ill. 505. Such rules ‘are binding on
this and other courts the same as on litigants.’’ Swain v.
Hoberg, 380 Ill. 442. ‘‘A mandatory rule which limits the
power of the Court as well as the parties must be complied
with, and acts not complying therewith are void.’’ (Italics
ours.) Sec. 176, Courts, 21 0.J.S. p. 279, n. 63.
In the present case the Supreme Court of Illinois vio-
lated its own rules in three important respects in entering
its order dismissing the writ of error. It thus denied
petitioners due process of law and denied to them the equal
protection of the laws of the State of Illinois in violation of
the 14th Amendment. Its order was therefore void and of
no effect.
First: The Supreme Court of Illinois violated its own
rules in entertaining the motion to dismiss the writ of error
at the time the motion was presented for consideration.
Rule 28 (Sec. 259.28, Ch. 110, Ill. Rev. Stat. 1951) provides
that: ‘‘the rules of this court referring to appellant and
appellee shall, to the extent applicable, include plaintiff in
error and defendant in error in criminal cases, and in civil
cases where writ of error is preserved as a method of
review.”’ Rule 41 (Sec. 259.41, Ch. 110, Ill, Rev. Stat. 1951)
provides: ‘‘The abstract and the brief of the appellant in
6
the Supreme Court * * * must be filed in the Clerk’s office
on or before 20 days before the first day of the term at
which the cause will stand for hearing, unless the time for
filing the same is extended.’’ (Italics ours.) The appellee
under the rule has 20 days from the date he is served with
a copy of the appellant’s brief in which to file his brief.
Rule 41 is applicable to writs of error since there is no
special statute regulating the filing of briefs in support of
or answer to a writ of error. Rule 42 (Sec. 259.42, Ch. 110,
IIL. Rev, Stat. 1951) provides that all cases other than crim-
inal are to be placed on the docket and called for hearing
in the order in which the records have been filed with
the Clerk. Rule 43 (Sec. 259.43, Ch. 110, Til. Rev. Stat.
1951) with certain exceptions not here relevant provides:
‘‘Where, by reason of an extension of time for filing briefs,
the brief of the appellee is not due and is not filed at the
time the cause is called for hearing the cause will be
continued.’’ (Italics ours.) In this case petitioners as
plaintiffs in error had filed their record in the office of
the Clerk of the Supreme Court of Illinois more than 20
days before the commencement of the January Term 1952
which began on the second Monday of January (Sec. 6, Ch.
37, Ill. Rev. Stat. 1951) and the scire facias had been served
before that date. On December 21, 1951, Mr. J ustice Daily of
the Supreme Court of Illinois entered an order extending
the time for plaintiffs in error to file abstracts and briefs
to February 13, 1952 (Rec. 44, 85). Manifestly the briefs
of appellees would not be filed until after February 13, 1952,
which was after the January Term, 1952, and the cause
automatically under the rules was continued from the
January Term 1952, to which it had originally been dock-
eted, to the March Term 1952. Notwithstanding this auto-
matic continuance under its own rules, the Supreme Court
of Illinois proceeded to entertain a motion to dismiss the
writ of error at the January Term 1952 and to grant the
7
motion to dismiss at that term (Rec. 28, 38). Under its
own rules it had no right or power to do so.
Second: The Supreme Court of Illinois violated its own
rules in granting the motion to dismiss the writ of error
on January 16, 1952 (Rec. 38) the third day of the January
Term 1952. Rule 70 (Sec. 259.70, Ch. 110, Ill. Rev. Stat.
1951) provides in part: ‘‘In all cases in the reviewing
court where the defendant in error or appellee desires to
file a motion in the nature of a plea, he shall file his motion
in the office of the clerk not later than the first day of
the term to which the cause is docketed, and the plaintiff in
error or appellant or any co-parties who do not join in
the motion shall file their suggestions, if any, in opposition
to the motion on or before the fifth day of the term or
within such further extended time as the court may grant
upon application made within such five days.’’ The Janu-
ary Term of the Supreme Court of Illinois began on Janu-
ary 14, 1952 (Sec. 6, Ch. 37, Ill. Rev. Stat. 1951). The
motion of defendants in error to dismiss the writ of error
was filed on that date. It asked dismissal of the writ of
error on the grounds it was not filed within 40 days after
the judgment of the Appellate Court became final, i.e.,
a plea of limitations (Rec. 28). If correct, this ground
would bar the prosecution of the writ of error. Prior to
the adoption of Sec. 864 of the Civil Practice Act (Sec.
210a, Ch. 110, Ill. Rev. Stat. 1951) this defense would have
to be raised by plea. Kerner v. Thompson, 365 Ill. 149;
Peterson v. Manhattan Life Ins. Co., 244 Ill. 329, 334.
That Act provides it shall now be raised by motion in lieu of
a plea. Petitioners were therefore entitled to five days in
which to respond to this motion. The Supreme Court of Illi-
nois, in violation of its own rules, decided the motion on
January 16 before the period of five days expired, depriving
petitioners of their opportunity to answer the motion. In
Ozman v. Baker County, 115 Ore. 436, 448, the court had
before it a case involving a judgment entered in violation of
a rule of court that was mandatory. A judgment had been
entered in the trial court on November 1, 1924. On December
27, 1924, the trial court entered an ex parte order without
notice to plaintiffs directing an entry of judgment identical
with that of November 1, 1924 but allowing defendant until
March, 1925, in which to prepare and submit a bill of
exceptions. A rule of the trial court provided that a bill of
exceptions must be entered within 30 days after judgment.
The Supreme Court of Oregon held the rule binding upon
the court, and held the order of December 27, 1941, was
a nullity stating: ‘‘Where a court has established rules
for its government and that of suitors, there exists no
discretion in the court to dispense at pleasure with their
rules, or to innovate an established practice.’’ See also
Sec. 176, Courts, 21 0.J.8., p. 279, n. 63. That decision is
good law and is applicable here. It follows the order of
dismissal in the instant case was a void order.
Third: The Supreme Court of Illinois violated its own
rules in dismissing the writ of-error on January 16, 1952,
because Rule 63 (Sec. 259.63, Ch. 110, Ill. Rev. Stat. 1951)
provides that a defendant in error shall not be at liberty
to enter his appearance and compel the plaintiff in error
to proceed with the cause unless the defendant in error shall
have given the plaintiff in error 20 days’ notice before
the term of his intention to enter his appearance and have
the cause proceed to a hearing and no 20-day notice of
such intention was given in this cause. (Italics ours.) It
follows that said order dismissing the writ of error is void.
Substantive Aspects
In Stembridge v. State of Georgia, 72 S. Ct. 834, 837-8,
this court said:
‘(Where the highest court of the state delivers no
opinion and it appears that the judgment might have
rested upon a non-federal ground, this court will not
take jurisdiction to review the judgment. * * * We are
without jurisdiction when the existence of an adequate
state ground is debatable.’’
As stated above the Supreme Court of Illinois in dismiss-
ing the writ of error rendered no opinion. But it is affirma-
tively demonstrated by the record that no adequate non-
Federal ground could have been the basis for the action
of the Supreme Court of Illinois in dismissing the writ
of error and that it simply decided the Federal constitu-
tional questions presented adversely to petitioners’ con-
tentions.
The possible grounds on which the court might have
relied in dismissing the writ of error are stated in respond-
ents’ motion to dismiss the writ of error (Rec. 28). Para-
graph 1 of that motion does not state any valid ground on
which the Supreme Court of Illinois could have relied in
view of its decision in Altschuler v. Altschuler, 410 Ill. 169,
at 173-4 (Rec. 70-71), that a common law writ of error to
review a judgment of the Appellate Court where a con-
stitutional question has been injected into the case by the
judgment of the Appellate Court need not be sued out
within the 90-day limitation period established by Section
76 of the Civil Practice Act. Sec. 200, Ch. 110 (Ill. Rev.
Stat. 1951) which governs in the case of ordinary appeals.
No provision has been made by the Illinois legislature for
the mode of prosecuting writs of error from the Appellate
Court to the Supreme Court of Illinois under such circum-
stances. Altschuler v. Altschuler, 410 Ill. 169, at 173-4
(Rec. 70-71), sadmocsummmionskpemeted, Ii the absence of
any legislative enactment establishing a limitation period
the only period applicable is the common law period of
twenty years. Peterson v. Manhattan Life Ins. Co., 244
Ill. 329, 334. The other non-Federal grounds advanced
by that motion (a) any constitutional question was waived
10
because no constitutional question was raised in the trial
court; (b) any constitutional question was waived by tak-
ing the case to the Illinois Appellate Court, Second Dis-
trict, errors being assigned of which that court had juris-
diction, and (c) were not raised in the Petition For Leave
To Appeal to the Supreme Court of Illinois, are so in-
separably tied up with the determination of the Federal
constitutional points raised by the writ of error and by
this Petition that they cannot be considered as being ade-
quate non-Federal grounds.
There is a presumption against waiver of fundamental
constitutional rights (Johnson v. Zerbst, 304 U.S. 464).
This court has, of course, the ultimate determination as to
whether the federal right asserted may be so lost, and
whether, under the particular circumstances, it has been
(Parker v. Illinois, 333 U.S. 571). Where a state court
finds as a fact that a federal right has been waived or lost
by estoppel this court is not bound by that ruling, but will
analyze the facts for itself and reach its own conclusions
as to their effect (Truax v. Corrigan, 257 U.S. 312, 324-
325; Union Pacific R. Co. v. Public Service Commission of
Missouri, 248 U.S. 67, 69-70; Ward v. Board of County
Com’rs, 253 U.S. 17, 22-23; Davis v. O’Hara, 266 U.S. 314).
Nor can the doctrine of whole or partial immunity of pri-
vate charitable corporations from tort liability justify the
dismissal of the writ of error as a non-Federal ground
because any such rule is itself under attack on federal
constitutional grounds.
ee eee
QUESTIONS PRESENTED.
1. Whether the State of Illinois through the action of
the Illinois Appellate Court in affirming the judgment of
the trial court notwithstanding a verdict ripe for judg-
11
ment under the ordinary rules of tort liability applicable
to all other private persons, individual or corporate, in
that jurisdiction, coupléd with the extinction of any pos-
sibility of further review by appeal within the State
judicial system without fault on the part of petitioners,
deprived petitioners of their personal security and prop-
erty without due process of law and denied to them the
equal protection of its laws in violation of their federal
rights under Section 1 of the 14th Amendment to the
Constitution of the United States?
2. Whether the State of Illinois in developing the com-
mon law policy of the State may exempt a private chari-
table corporation from judgment on a verdict ripe for
judgment under the ordinary rules of tort liability ap-
plicable to all other private persons, individual and cor-
porate, in that jurisdiction, such immunity being unknown
to the common law of England on March 24, 1606, the date
on which the statutes of England ceased to be the common
law in Illinois and May 6, 1776, the date the Colony of
Virginia declared its independence from England and July
4, 1776, the date of the Declaration of Independence and
being unknown to the common law in America on July 28,
1868, the date the 14th Amendment to the Constitution of
the United States went into effect, without depriving the
plaintiff of his personal security and property without due
process of law and denying to him the equal protection of
its laws in violation of his federal rights under Section 1
of the 14th Amendment to the Constitution of the United
States? At least where the plaintiff is a stranger to the
institution?
3. Whether the State of Illinois in developing the com-
mon law policy of the State may exempt a private chari-
table corporation not presently possessed of non-trust prop-
erty at the time of trial from judgment on a verdict ripe
12
for judgment under the ordinary rules of tort liability
applicable to all other private persons, individual and cor-
porate, in that jurisdiction, including private charitable
corporations presently possessed of insurance or other non-
trust property at the time of trial, without depriving the
plaintiff of his personal security and property without due
process of law and denying to him the equal protection of
its laws in violation of his federal rights under Section 1
of the 14th Amendment to the Constitution of the United
States? And where the plaintiff is a stranger to the in-
stitution?
4. Whether the State of Illinois in developing the com-
mon law policy of the State may set up as a test of liability
of a defendant to judgment in an action in tort possession
by the defendant at the time of trial of non-trust property
subject to being taken to satisfy the judgment—a factor
alien to any question of fault, damage, or right of satis-
faction—without depriving the person to whose detriment
the test is applied of his personal security and property
without due process of law and denying to him the equal
protection of its laws in violation of his federal rights
under Section 1 of the 14th Amendment to the Constitution
of the United States?
5. Whether the constitutional questions presented arose
for the first time in the Illinois Appellate Court, Second
District, upon extinction of any possibility of further re-
view by appeal within the State judicial system without
fault on the part of the petitioners, or were present in the
trial court; and, if they were present in the trial court,
whether they were waived by petitioners by failure to as-
sert them in the trial court or by appealing to the Illinois
Appellate Court in the first instance rather than to the
Supreme Court of Illinois; which involves a further deter-
mination—whether the State of Illinois provides any ade-
13
quate means by which the common law policy of the State
may be challenged or tested by or subjected to or governed
by the requirements of Section 1 of the 14th Amendment
to the Constitution of the United States?
6. Whether the State of Illinois acting through its ju-
dicial department deprived petitioners of their personal
security and property without due process of law and
denied them the equal protection of its laws in violation
of their federal rights under Section 1 of the 14th Amend-
ment to the Constitution of the United States by the action
of the Supreme Court of Illinois in (a) dismissing the writ
of error, (b) without a formal hearing such as other liti-
gants are afforded, (c) without opinion, (d) on a motion
filed, entertained, and allowed in violation of its own rules,
(e) after granting petitioners an extension of time in
which to file abstracts and briefs which time would not
expire until after the term at which the order of dismissal
was entered; (f) in refusing to vacate the order of dis-
missal on a motion filed or presented for filing within
thirty days after the order of dismissal was entered; and
(g) in refusing to set aside a void order of dismissal at any
time?
THE RULE OF DECISION IN ILLINOIS.
The Act of March 5, 1874, provided
‘That the common law of England, so far as the same
is applicable and of a general nature, and all statutes or
acts of the British parliament made in aid of, and to sup-
ply the defects of the common law, prior to the fourth year
of James the First [beginning March 24, 1606 and end-
ing March 23, 1607], excepting the second section of the
sixth chapter of 43rd Elizabeth, the eighth chapter of 13th
Elizabeth, and ninth chapter of 37th Henry Eight, and
ns
14
which are of a general nature and not local to that king-
dom, shall be the rule of decision, and shall be considered
as of full force until repealed by legislative authority.’’
(Italics ours). Ch. 28, Ill. Rev. Stat. 1951.
WRIT OF ERROR IN ILLINOIS.
A common law writ of error is a new suit in Illinois,
Freeson v. Scott County Drainage ¢ Levee District, 283
Ii. 536. The assignments of errors are the pleadings.
Freeson v. Scott County Drainage & Levee District, 283
Ill. 536. It has been abolished as a method of review in
the ordinary civil proceeding and review by notice of ap-
peal substituted. Sec. 74 Civil Practice Act, Sec. 198, Ch.
110 Ill. Rev. Stat. 1951. But ‘‘the rule is well settled that
where a constitutional question first arises in the Appellate
Court’? the Supreme Court of Illinois ‘‘has jurisdiction to
review the judgment of the Appellate Court, on writ of er-
ror. This rule has not been changed by the Practice Act.”’
Cummings-Landau Laundry Machinery Co. v. Koplin, 386
til, 368373: Sprague v. Goodrich, 96F Ill. 80, #2. This re-
view is mandatory. Altschuler v. Altschuler, 410 Til. 169.
The ninety day limitation on the right to appeal does not
apply to a writ of error under such circumstances. Alts-
chuler v. Altschuler, 410 Ill. 169. In the absence of legis-
lation the limitation period is twenty years. Peterson v.
Manhattan Ins. Co., 244 Ill. 329, 334.
15
LIABILITY AND IMMUNITY OF PRIVATE
CHARITABLE CORPORATIONS IN ILLINOIS.
Under the decisions of the Supreme Court of Illinois a
private charitable corporation is subject to tort liability
when it has insurance or other non-trust funds. Moore v.
Moyle, 405 Ill. 555. In that case, the latest decision in IIli-
nois on the question, the court declared: ‘‘From a care-
ful analysis of the many cases, we are of the opinion that
the law in Illinois is that the trust funds of charitable cor-
porations are immune from liability for the torts of the
corporation’s employees and agents. Beyond that, the rule
of respondeat superior is in effect.’’ It would seem to fol-
low that a charitable corporation is liable to judgment in
an action in tort but that its trust funds cannot be taken
to satisfy the liability. But the Illinois Appellate Court,
Second District, held in the instant case that it is not
subject to liability when all of its assets are trust funds.
Slenker v. Gordon, 344 Ill. App. 1. If that decision cor-
rectly states the Illinois law on the subject, it follows
that judgment is limited to the amount of non-trust prop-
erty in the possession of the charitable corporation at the
time of trial. It further follows that a charitable corpo-
ration having no non-trust property is only subject to tort
liability when and to the extent it carries liability insur-
ance, i.e., voluntarily subjects itself to tort liability.
16
STATEMENT.
The facts and proceedings in the trial court are simply
stated in the opinion of the Illinois Appellate Court (Rec.
6). Petitioners, Fred Slenker, and his wife, Elizabeth
Slenker sued David W. Gordon and the Grand Lodge of
the State of Illinois of the Independent Order of Odd Fel-
lows to recover for personal injuries sustained by them on
February 21, 1945, in a collision between their automobile
and an automobile driven by Gordon. That suit was filed
on May 19, 1945. The complaint was amended and a sever-
ance granted the defendant Gordon. It alleged that Gor-
don was at and before the time of the collision, the officer,
agent and servant of the corporate defendant and alleged
that the corporate defendant, through its said officer, agent
and servant, Gordon, was guilty of the several acts of
alleged negligence. The defendant in its answer averred
that it was a charit#e organization organized under a
special act of the Legislature of the State of Illinois; that
all of its objects and service were wholly charitable and
as such it was not liable in anywise for the torts of Gordon
or any of its servants. A reply was filed by the petitioners
and, after the issues had been made up, a jury trial was
had, resulting in a verdict finding the corporate defendant
guilty and assessing the damages of petitioner, Fred
Slenker, at $8,000.00 and assessing the damages of the
petitioner, Elizabeth Slenker, at $16,000.00.
The jury, in addition to these general verdicts, also an-
swered in the affirmative this special interrogatory, viz.:
Was David W. Gordon at the time of the collision in ques-
tion, in driving and operating his automobile, acting as an
agent or servant of the defendant, Grand Lodge of the
State of Illinois of the Independent Order of Odd Fellows,
a corporation, and in the scope of his employment?
Thereafter the motion of the corporate defendant for a
new trial was denied but its motion for judgment notwith-
17
standing the verdict was sustained, the trial court holding
that defendant was a charitable organization and as such
immune from tort liability. Judgment was rendered in
favor of the corporate defendant and against petitioners
in bar of the action and for costs. To reverse this judg-
ment petitioners appealed to the Illinois Appellate Court,
Second District (Ree. 142).
Appeal.
The Appellate Court held that the Grand Lodge is a
charitable corporation (Rec. 17). The court said:
“The appellee pleaded in its answer the defense
that it was a charitable organization, that all its ob-
jects and service were wholly charitable and as such
it was not liable for the torts of any of its agents and
servants. The facts with reference to the funds of
appellee were brought out in the evidence presented
at the trial. The record in this case shows that ap-
pellee is a charitable organization and that all of the
funds of the Grand Lodge of the State of Illinois of
the Independent Order of Odd Fellows are trust funds
devoted to the purposes of the Independent Order of
Odd Fellows. This brings the case within the rule of
the Parks case [Parks v. Northwestern University,
218 Ill. 381, 75 N.E. 991, 993, 2 L.R.A., N.S., 556] that
the trust funds of a charitable institution must be pro-
tected. Moore v. Moyle, supra [Moore v. Moyle, 405
Til. 555, 92 N.E. 2d 81], does not overrule the Parks
case, but reaffirms the principles laid down in it. The
trial court therefore properly entered judgment for
the defendant notwithstanding the verdict and that
judgment must be affirmed. In view of this conclusion,
it is unnecessary to consider the other errors relied
upon or the assigned cross-errors’’ (Rec. 24).
Petitioners filed a motion in the Appellate Court in
proper time for a certificate of importance which, if
granted, would automatically send the case to the Supreme
Court of Illinois (Sec. 75, Civil Practice and Rules of
Supreme Court [of Illinois], 1951) (Sec. -#3'(2a), Ch. 110,
.
Bree enim ‘ OLN, ERB SS LEA EI LGPL REDS;
aha la tO whieh 2 re a IHR t
18
Ill. Rev. Stat. 1951). It was denied (Rec. 25-26). Peti-
tioners next filed a motion in proper time in the Appellate
Court for a certificate that the jurisdictional amount—
$1,500.00—was involved (Sec. 75, Civil Practice Act and
Rules of Supreme Court [of Illinois] 1951) (Sec. 48, Ch.
110, Ill. Rev. Stat. 1951), which was allowed (Rec. 26),
and in proper time filed a petition with the Supreme Court
of Illinois for leave to appeal (Rec. 27). It was denied
(Ree. 27).
Petitioners then sued out a writ of error in the Supreme
Court of Illinois on state and federal constitutional grounds
(Rec. 1, 206), under the authority of Altschuler v. Alts-
chuler, 410 Ill. 169, at 173-174.
Writ of Error.
This was the first time any constitutional question was
raised in the case. The assignment of errors on writ of
error alleged, in brief, that the trial court erred in enter-
ing the judgment notwithstanding the verdict and the Ap-
pellate Court erred in affirming that judgment and
‘coupled with the extinction of any possibility of correct-
ing said errors by appeal’’ the State of Illinois had de-
prived plaintiffs of their fundamental right to have judg-
ment entered on the verdict when the verdict was ripe for
judgment thus depriving them of their personal security
and property without due process of law and denied them
the equal protection of its laws in violation of their fed-
eral rights under the 14th Amendment to the Constitution
of the United States and that ‘‘any rule devised or applied
by the courts of this state clothing a corporation organ-
ized for charitable purposes and not for profit with whole
or partial immunity (a) to suit or (b) to judgment ero
tort’’, would have the same result (Rec. 300, 302, 304).
Petitioners specifically pointed out ‘The Appellate
Court erred in holding that because ‘the trust funds of a
19.
ee eee : THE
charitable institution must be protected’strial court there-
fore properly entered judgment notwithstanding the ver-
dict and that judgment must be affirmed’’, and in holding
that a charitable corporation ‘‘itself is ever immune from
judgment’’, and ‘‘it is necessary for the plaintiff to prove
a defendant has non-trust property from which to pay a
judgment before a judgment can be entered’’ (Rec. 300-
301).
SPECIFICATION OF ERRORS.
1. The Supreme Court of Illinois erred in dismissing
the writ of error and in refusing to vacate the order of
dismissal.
2. The trial court erred in not entering judgment for
plaintiff on the verdict.
3. The trial court erred in allowing defendant’s motion
for a directed verdict and for judgment notwithstanding
the verdict.
4. The Appellate Court erred in affirming the judgment
for defendant notwithstanding the verdict.
5. The trial court erred in holding that the doctrine of
respondeat superior has no application to a corporation
organized for charitable purposes and not for profit.
6. The trial court erred in holding that a corporation
organized for charitable purposes and not for profit is not
liable for torts committed by its employees or agents with-
in the scope of their employment.
7. The Appellate Court erred in holding that because
‘‘the trust funds of a charitable institution must be pro-
tected’’ that ‘‘the trial court therefore properly entered
judgment notwithstanding the verdict and that judgment
must be affirmed’’.
8. The Appellate Court erred in holding that it is nec-
essary for the plaintiff to prove a defendant has non-trust
property from which to pay a judgment before a judgment
can be entered in favor of a plaintiff in an action in tort
against a corporation organized for charitable purposes
and not for profit.
9. The Appellate Court erred in holding that a corpo-
ration organized for charitable purposes and not for profit
itself is entitled to any immunity from tort liability what-
soever.
10. The Appellate Court erred in holding that a cor-
poration organized for charitable purposes and not for
profit itself is ever immune from judgment in an action
in tort.
11. The Appellate Court erred in holding that payment
of a judgment in a tort action from the trust property of
a corporation organized for charitable purposes and not
for profit would divert it from the purposes of the cor-
poration.
12. The trial and Appellate Courts erred in holding
that the record in this case shows that the defendant is a
corporation organized for charitable purposes and not for
profit.
13. The trial and Appellate Courts erred in holding
that all of the property owned by the Grand Lodge of the
State of Illinois of the Independent Order of Odd Fellows
is trust property.
14. The Appellate Court erred in holding that evidence
as to the manner in which property was held by defend-
ant introduced for the purpose of determining whether de-
fendant was a corporation organized for charitable pur-
poses and not for profit could be used for the purpose of
determining whether defendant owns any non-trust
property.
21
15. That by reason of each of the errors committed by
the trial and Appellate Courts as above specified, coupled
with the extinction of any possibility of correcting said
errors by appeal by the Appellate Court denying an ap-
plication for a certificate of importance and the Supreme
Court denying a petition for leave to appeal, the State of
Illinois acting through its judicial department has de-
prived plaintiffs of their constitutional rights as herein-
after specified :
It has deprived the plaintiffs of their fundamental
right to have judgment entered on the verdict when the
verdict is ripe for judgment, in violation of Section 1 of the
14th Amendment to the Constitution of the United States, EEK.
which provides that no state shall deprive any person; or ~
deny to any person within its jurisdiction the equal pro-
tection of its laws.
16. That the State of Illinois through the action of the
Illinois Appellate Court in affirming the judgment of the
trial court notwithstanding a verdict ripe for judgment
under the ordinary rules of tort liability applicable to all
other private persons, individual or corporate, in that jur-
isdiction, coupled with the extinction of any possibility of
further review by appeal within the state judicial system
without fault on the part of petitioners, constituted action
by the State of Illinois depriving petitioners of their per-
sonal security and property without due process of law
and denying to them the equal protection of its laws in vio-
lation of their federal rights under Section 1 of the 14th
Amendment to the Constitution of the United States.
17. That the State of Ilinois in developing the com-
mon law policy of the state in exempting to any extent a
private charitable corporation from judgment on a verdict
ripe for judgment under the ordinary rules of tort liability
applicable to all other private persons, individual and cor-
porate, in that jurisdiction, and unknown to the common
law of England on March 24, 1606, and May 6, 1776, and
July 4, 1776, and the common law in America on July 28,
1868, has deprived petitioners of their personal security and
property without due process of law and denied to them
the equal protection of its laws in violation of their fed-
eral rights under Section 1 of the 14th Amendment to the
Constitution of the United States especially since they were
strangers to the institution.
18. That the State of Illinois in exempting the Grand
Lodge of the State of Illinois of the Independent Order of
Odd Fellows, a private charitable corporation not pres-
ently possessed of non-trust property at the time of trial
from judgment on a verdict ripe for judgment under the
ordinary rules of tort liability applicable to all other pri-
vate persons, individual and corporate, in that jurisdic-
tion, including private charitable corporations presently
possessed of insurance or other non-trust property at the
time of trial, deprived petitioners of their personal se-
curity and property without due process of law and denied
to them the equal protection of its laws in violation of their
federal rights under Section 1 of the 14th Amendment to
the Constitution of the United States.
19. That the State of Illinois in developing the com-
mon law policy of the state had no right to set up as a
test of liability of the Grand Lodge of the State of Illinois
of the Independent Order of Odd Fellows to judgment in
an action in tort possession by the corporation at the time
of trial of non-trust property subject to being taken to
: ol
23
satisfy the judgment—a factor alien to any question of
fault, damage, or right of satisfaction—and in applying
the test to the petitioners’ detriment deprived petitioners
of their personal security and property without due process
of law and denied to them the equal protection of its laws
in violation of their federal rights under Section 1 of the
14th Amendment to the Constitution of the United States.
20. That the constitutional questions presented arose
for the first time in the Illinois Appellate Court, Second
District, upon extinction of any possibility of further re-
view by appeal within the state judicial system without
fault on the part of petitioners—contrary to the implied
decision of the Supreme Court of Illinois that it did not—
especially in view of the fact that the State of Illinois does
not provide any adequate means by which the common
law policy of the state may be challenged or tested or sub-
jected to or governed by the requirements of Section 1 of
the 14th Amendment to the Constitution of the United
States relative to due process and the equal protection of
the laws; and, as a consequence the Supreme Court of Ili-
nois under its decision in Altschuler v. Altschuler, 410 Ill.
169, at 173-174, holding that a writ of error to review cases
on constitutional grounds arising for the first time in the
Illinois Appellate Courts was a matter of right without
time limitation other than that applicable at common law
to writ of error, i. e., twenty years, had no discretion in
the matter but was required to hear the case and sustain
the writ and erred in dismissing the writ of error thereby
exhausting all possibility of further review in the state
24
judicial system and terminating any possibility of remedy
in that state, the State of Illinois thereby depriving peti-
tioners of their personal security and property without due
process of law and denying to them the equal protection
of its laws in violation of their federal rights under Sec-
tion 1 of the 14th Amendment to the Constitution of the
United States.
21. That the State of Illinois acting through its judi-
cial department deprived petitioners of their personal
security and property without due process of law and denied
them the equal protection of its laws in violation of their
federal rights under Section 1 of the 14th Amendment to
the Constitution of the United States by the action of the
Supreme Court of Illinois in (a) dismissing the writ of
error, (b) without a formal hearing such as other litigants
are afforded, (c) without opinion, (d) on a motion filed,
entertained, and allowed in violation of its own rules, (e)
after granting petitioners an extension of time in which
to file abstracts and briefs which time would not expire
until after the term at which the order of dismissal was
entered, (f) in refusing to vacate the order of dismissal
on a motion filed within thirty days after the order of dis-
missal was entered, and, (g) in refusing to set aside a
void order at any time.
25
Reasons Relied On for Allowance of Writ.
L
The State of Illinois provides no means by which the
common law policy of that state may be challenged or
tested or governed by or subjected to the Fourteenth
Amendment.
It has long been recognized that the action of state courts
in enforcing a substantive common-law rule formulated by
those courts, may result in a denial of rights guaranteed by
the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S.
1, 14-18. It follows that te state courts must provide
some method by which the substantive common-law rules
formulated by the state courts may be challenged or tested
or governed by or subjected to the Fourteenth Amendment.
The issues here are similar to the issues in that case except
there the state supreme courts rendered opinions and en-
forced the common law rule complained of while here the
Supreme Court of Illinois rendered no opinion and simply
refused to disturb the decision of the Appellate Court.
Review ‘‘on the question of constitutionality of procedure
or result must be permitted when fundamental rights are
involved.’? Ohio Valley Water Co. v. Ben Avon Borough,
253 U.S. 287 at 289. Mott, Due Process, p. 239 n. 67.
And if the state courts do not do so it is incumbent upon
this Court to review the case.
But the State of Illinois provides no adequate means
by which the common-law policy of the state may be chal-
lenged or tested or governed by or subjected to the 14th
Amendment. This is shown by a consideration of the action
of the Supreme Court of Illinois in dismissing the writ
of error on motion in the instant case and decisions of
that court in other cases, especially Moore v. Moyle, 399
Til, 250, 405 Ill. 555; McIlwaine v. City Nat. Bonk, 371 Tl.
565; and Hass Electric Co. v. Amusement Park Co., 236
Til. 452.
In Moore v. Moyle, 399 Ill. 230, the plaintiff Moore took
a direct appeal to the Supreme Court of Illinois on the
ground that the common law rule of that state granting
immunity to tort liability to charitable corporations vio-
lated her federal rights under the due process and equal
protection clauses of the 14th Amendment when applied
to prevent her from maintaining an action based on
respondeat superior against a charitable corporation. The
constitutional question was r js in the trial court by
a timely motion to vacate and’ 4 g the complaint. The
court held that no constitutional question was presented
and transferred the cause to the Appellate Court of Illinois
for determination. The court said:
‘‘Where a judgment or decree is attacked on the
grounds that its enforcement will deprive the one
against whom it is sought to be enforced of some
constitutional right no constitutional question is pre-
sented which authorizes a direct appeal to this court.
The question involved in such a case is the validity of
the judgment or decree and is not a constitutional
question within the meaning of the statute which au-
thorizes a direct appeal to this court * * * The issue is
rather the correctness or incorrectness of the order and
judgment of the trial court. Of this we have no juris-
diction on direct review.’’ (Italics ours.)
On subsequent appeal to the Supreme Court of Illinois
on a certificate of importance from an adverse Appellate
Court ruling counsel argued at page 74 of the Brief and
Argument of Appellant (Rec. 66):
‘‘This court [Supreme Court of Illinois] held when
plaintiff sought to have the decision of the lower court
reviewed directly by this court that no constitutional
question was involved ‘within the meaning of the stat-
ute which authorizes appeals direct to this court.’
Moore v. Moyle, 399 Ill. 230. But this court did not
27
decide whether plaintiff was deprived of her consti-
tutional rights. That question remains to be deter-
mined.”’
In the opinion in Moore v. Moyle, 405 Ill. 555, the decision
on that second appeal the court in answering that conten-
tion made only the following comment, concerning the
constitutional issues:
‘*From that judgment appellant came here on direct
appeal contending constitutional questions were in-
volved. This court found no fairly debatable consti-
tutional questions were presented and ruled on in the
trial court, so as to give this court jurisdiction on
direct appeal, and that the question presented was
whether the judgment of the trial court was correct.
Moore v. Moyle, 399 Ill. 230, 77 N.E. 2d 651.’’
It appears that the phrase ‘‘within the meaning of the
statute which authorizes appeals direct to this court’’ adds
nothing to the statement ‘‘is not a constitutional question.’’
In People ex rel. Tinkoff v. Northwestern University, 396
Ill. 233; Chapralis v. City of Chicago, 389 Ill. 269; In re
Paus’ Estate, 385 Ill. 550; Perlman v. Thomas Paper Stock
Co., 378 Ill. 238; and De LaCour v. De LaCour, 363 Tll. 545;
the court reached the same conclusion as it reached in
Moore v. Moyle, 399 Ill. 230.
The ratio decidendi has been clearly stated by the
Supreme Court of Illinois: ‘‘If error was committed by
the circuit court it can be corrected in the Appellate
Court.’’ Riddlesbarger v. Riddlesbarger, 410 Ill. 392. Or
as it said in McIlvaine v. City Nat. Bank and Trust Co.,
371 Ill. 565; and Jn re Paus’ Estate, 385 Tl. 550:
“‘If errors are committed or erroneous or unjust
decisions are rendered they may be corrected in the
manner provided by law for the correction of such
errors, but mere error in a judgment or decree does
not deprive the losing party of the benefit of due
process of law. Foreman-State Nat. Bank v. Sistek,35
525, 193 N.E. 513.”’
(Italics in above paragraph ours.)
It follows that in Illinois no constitutional question can
arise in either the trial or appellate courts as to the
validity of a rule of common law (as distinguished from
a statutory enactment) as long as there is a possibility to
appeal the case within the state judicial system. Until
the possibility of further appeal is extinguished the issue
is the correctness or incorrectness of the decision of the
trial court or the Appellate Court. Until that happens
there is nothing except ‘‘mere error’’ that may be cor-
rected in the manner provided by law for the correction
of such errors.
The holdings of the Supreme Court of Illinois that no
constitutional question arises in a case at common law
until all possibility of appeal is extinguished is consistent
with the manner in which the common law of the State
of Illinois and the common law of any other common law
jurisdiction is developed. Until the highest court in the
state has declared the common law policy of the state the
declaration of what the common law of that particular
jurisdiction is merely tentative. It is not law until all
possibility of appeal to the highest court of the state has
been exhausted. And then it only becomes the law of
the land as distinguished from being the law of the case to
the extent it does not conflict with decisions made by
the Supreme Court of the state. Only when the decision
becomes final in the sense that further appeal within the
state judicial system is impossible has there been or can
there be any deprivation of right as far as the litigant
is concerned in a permanent sense. If he does not exhaust
all possible methods of obtaining review by appeal he
acquiesces in the judgment and waives his constitutional
rights,
As a practical matter it makes little difference when
the courts of a state determine when a constitutional ques-
tion arises for the first time provided that the courts con-
sistently apply the same rule. But the judicial system of
a state should be required to uniformly apply the same
rule in all cases. There is no doubt that a constitutional
question arises in the trial court when a statute is involved
because that declaration of law is not subject to change at
the whim of the judiciary. But in the case of a rule at
common law it is subject to change by judicial decision.
The courts of the State of Illinois could have adopted
the view that a constitutional question arose in the trial
court. But they have not done so and the distinction
between the nature of a statute and the position of the
courts in regard thereromwitethe- itive a common law -
rule and the position of the courts in regard thereto may
justify the courts in declaring a different rule in regard
to when the court’s constitutional question arises as a
result of their enforcement. And having once adopted
a rule as to when a constitutional question arises as a result
of the enforcement of a common law rule which is different
from that applicable to the enforcement of a statute it
must be adhered to. And if it is, no one can make any
justifiable complaint concerning it.
But the Supreme Court of Illinois has developed another
rule that must be considered. It has repeatedly held that
if a case is taken directly to the Appellate Court and
there are questions other than the constitutional questions
raised of which that court has jurisdiction the constitn-
tional questions are waived. Hass Electric Co. v. Amuse-
ment Park Co., 236 Ill. 452; Luken v. Lake Shore & Michi-
gan 8. Ry. Co., 248 Ill. 377. These are the cases cited by
30
respondents in their suggestions to their motion to dismiss
the writ of error (Rec. 36) and in the absence of any
opinion must be taken to be the basis on which the Supreme
Court of Illinois acted in dismissing the writ of error and
in refusing to vacate the order of dismissal in view of
the fact, as has been shown, that the writ of error was
not barred by limitations.
The application of the two rules in the instant case
shows precisely what happens: on direct appeal no consti-
tutional question is involved: on indirect appeal the consti-
tutional question is waived. Under such circumstances it
would be an idle gesture (as it was in Moore v. Moyle, 399
Tll. 230, 405 Ill. 555) to make any contention in the trial
court that a rule declared by the Supreme Court of the
State of Illinois to be the common law of that jurisdiction
is unconstitutional. Consequently, no attack can success-
fully be made equsemetitutiemmiggneunds against a common
law rule of the State of Illinois on constitutional grounds,
and the common law policy of the state for all practical
purposes is unfettered by constitutional limitations.
There are only two ways in which that result can be
avoided: (a) to hold that the constitutional question arises
for the first time in the Appellate Court when all possibility
of further appeal is exhausted, or (b) to hold that the
constitutional question arises in the trial court. But it is
absolutely impossible to avoid the result reached in the
instant case as long as the Supreme Court of Illinois
holds that no constitutional question is present while there
is a possibility of appeal on the one hand, thus barring
direct appeal to the Supreme Court of Illinois, and that
by taking the case to the Appellate Court in the first
instance the litigant waives the constitutional questions,
thus barring their ultimate determination on the other.
It is submitted that the law in Illinois concerning con-
stitutional questions is as badly muddled as its criminal
31
procedure with which the Court has had occasion to be
familiar. The Petition for Writ of Certiorari should be
granted and the Supreme Court of Illinois and the State of
Illinois be required to provide for adequate review of
the common law policy of the state when such policy is
challenged on federal constitutional grounds. The matter
is one of national importance.
The means is at hand. The two lines of cases indicated
can only be reconciled on the hypothesis that no constitu-
tional question is presented by a case involving the common
law policy of the state in either the trial or intermediate
Appellate Court until all possibility of further appeal to
the state court of last resort is extinguished. If that view
be adopted it would follow that the constitutional questions
in the instant case arose when without any fault on the part
of petitioners all chance of correcting the errors committed
by the trial and appellate courts was extinguished by
the concurrent action of the Appellate Court and the Su-
preme Court of Illinois in closing the road to further
review by appeal. Of course denial of a certificate of
importance and denial of leave to appeal did not constitute
the denial of any constitutional right since the issuance
of a certificate of importance or the granting of leave to
appeal is entirely a matter of judicial discretion. But that
denial extinguished all possibility of correcting the errors
by appeal and acted as a catalyst whereby the action of
the trial court and of the Appellate Court became the final
action of the courts of the State of Illinois and the State
of Illinois as to common law policy and a denial of consti-
tutional right by the courts of the State of Illinois and
the State of Illinois.
The Illinois rule being well settled that where a consti-
tutional question first arises in the Appellate Court the
Supreme Court of Illinois has jurisdiction to review the
judgment of the Appellate Court on writ of error (Cum-
mings-Landau Laundry Machinery Co. v. Koplin, 386 Iii.
368; Goodrich v. Sprague, 376 Ill. 80; Corcoran v. City of
Chicago, 373 Ill. 567; Burket v. Reliance Bank and Trust
Co., 366 Ill. 120; Segal v. Chicago City Railway Co., 325
Ill. 43) even after 90 days (Altschuler v. Altschuler, 410 I.
169, 173-174) the solution suggested would solve the pro-
cedural difficulty.
The problem is worthy of the consideration of this Court
and a decision by this Court would tend to correct similar
situations in other states than Illinois having intermediate
Appellate Courts of limited jurisdiction to decide consti-
tutional questions.
IL
Fairly debatable federal constitutional questions of impor-
tance involving fundamental rights of the individual are
presented for decision which this Court alone has the
ultimate power to decide and the determination of which
will effect the law of about thirty-two states which hold
that under the common law policy of the state private
charitable corporations are entitled to full or limited
immunity to judgment in an action in tort under circum-
stances in which any other private person, individual or
corporate, would be liable to judgment.
Fairly debatable federal constitutional questions are pre-
sented for decision (Rec. 206, 307). These are important
because they involve fundamental rights of the individual
(Rec, 60-65). This Court alone has the ultimate power to
decide them. Their determination will affect the law of
about thirty-two states which hold that under the common
law policy of the state private charitable corporations are
entitled to full or limited immunity to judgment in an action
SR PRN LT ae aa oh Pray Hee ae
in tort under circumstances in which any other private
person, individual or corporate, would be liable to judgment
(Reo, 47-59). A decision by this Court would be a landmark
case tending to establish just how far a state may go in
exempting any person from the ordinary rules of tort
liability as a part of the common law policy of the state
without violating the constitutional rights of the com-
plainant under the 14th Amendment to the Constitution of
the United States.
IIL.
Immunity of a private corporation to judgment in an action
in tort is without foundation in the common law and bars
the enforcement of fundamental rights and requires an
porate, in the same circumstances to make an unreason.
able contribution to the charitable corporation against
his will and is most unreasonable when applied against
& stranger to the institution or when immunity is limited
to corporations not presently possessed of insurance or
other non-trust property. The State of Ilinois, therefore,
in enforcing any immunity to judgment deprives an in.
Jjured person of his fundamental right to personal security
and property without due process of law and denies to
him the equal protection of its laws in violation of the
Fourteenth Amendment.
A. Immunity has no foundation in the common law.
The idea that a corporation is to be treated as a natural
man is the only theory about the personalty of corporations
that the common law has ever possessed. Hol®sworth
states: ‘‘The idea that the corporation is to be treated as
far as possible like a natural man is the only theory about
the personalty of corporations that the common law has
ever possessed.’’ (History of English Law, 3rd. Ed., Vol. 9,
p. 70): ‘So far as criminal or civil liability is concerned,
the courts have always been prepared to hold that a cor-
poration is as capable of being held liable as a natural
person.”’ (Ibid. pp. 51-52). Blackstone says that every
corporation has the power ‘‘To sue or be sued * * * as
natural persons may’’; and that power is ‘‘inseparably
incident to every corporation and of course tacitly an-
nexed.’’ (Bernard C. Gavit, Blackstone’s Commentaries on
The Law, pp. 211-212; 208-210). Hol@worth says: “‘It was
well recognized that the king’s charter could neither change
the common law, nor alter the rights and duties of private
persons fixed by law. To hold, therefore, that the king could
neither give nor take away powers from a corporation which
he could not give or take away from a natural man, was
quite in accordance with the constitutional doctrine. But,
if this was so, it followed that those powers and capabilities
were not only incidental, they were also inseparately an-
nexed.’’ (Hol€sworth, History of English Law, 3rd Ed.,
Vol. 9, p. 55). In general ‘the rights, powers, and liabilities
of the corporations are, as far as they exist, identical with
those of the man.’”’ Joel Prentiss Bishop, Non-Contract Law
(1889), pp. 332-333, Hol®sworth says: ‘‘The common law,
without indulging in much speculation as to the nature of
a corporation’s personalty, has evolved the common sense
view that a corporation has, so far as is consistent with its
artificial nature and with the purpose with which it is
created, the capacities and liabilities of a natural man.”’
Hol€@sworth’s Essays in Law and History, pp. 211-212.
(Italics ours.) ‘‘The treatment is consonant with popular
ideas and speech wherein corporate bodies are freely per-
sonified.’’ It has been accomplished ‘‘by the simple exten-
sion of the legal principles of agency.’’ Encyclopedia
Britannica, 14th Ed., Vol. 6, p. 464. ‘‘If it is once granted’’,
said Lord Lindley in his decision in Citizens Life Assurance
Co. v. Brown (1904), A.C. 423, 426, ‘‘that corporations are
for civil purposes to be regarded as persons, i.e., as prin-
cipals acting by agents and servants, it is difficult to see
why the ordinary doctrines of agency are not to be applied
to corporations as well as ordinary individuals.’’ The
maxim, respondeat superior, is founded on the principle
that every man in the management of his own affairs,
whether by himself or his servants, shall so conduct him-
self as not to injure another. Harding v. St. Louis Stock-
yards, 242 Ill. 444. The master is not liable because of
the authority given to the servant nor because the servant
had been negligent, ‘‘But because he is conducting the
master’s affairs, and the master is bound to see that his
affairs are so conducted that others are not injured.’’
In other words, the rule is based on a ‘‘great principle of
social duty’’, adopted ‘‘from general considerations of
policy and security.’’ Chief Justice Shaw in Farwell v.
Boston & Worcester R,.R. Corp., 4 Metcalf 49, quoted with
approval in Standard Oil Co. v. Anderson, 212 U. S. 215.
In Nevins v. City of Peoria, 41 Ill. 502, Mr. Justice Law-
rence said:
“In our opinion, the theory that private rights are
ever to be sacrificed to public convenience or necessity,
without full compensation, is fraught with danger and
should find no lodgment in American jurisprudence.
To prevent this was the object of some of the most
important of our constitutional guarantees. [Unless]
wma {is found] in the courts our institutions
ve failed in their great purpose—the complete secur-
ity of private rights * * * if an individual, exercising
his lawful powers, commit an injury, the action on
the case is the familiar remedy; if corporations acting
within the scope of their authority should work ill to
another, the same principle of ethics demands of them
to repair it, and no reason occurs to the court why
the same remedy should not be applied to compel
justice from them.’’ (Italics ours.)
Charitable corporations are private if the foundation is
private. ‘‘This is the unequivocal doctrine of the author-
ities; and cannot be shaken but by undermining the most
solid foundations of the common law.’’ Dartmouth College
v. Woodward, 4 Wheat. (U.S.) 518, 670 (Mr. Justice
Story); Washington Home v. City of Chicago, 157 Ill. 414.
It follows that such a corporation is a private and not a
public person.
The common law did not except a private charitable
corporation from these general rules (Rec. 52-57). It is
plain that the rule that a corporation should be treated
as a natural person was first applied to a corporation
organized for charitable purposes and not for profit (Rec.
52) and an abbott, a monastic corporation sole and conse-
quently a charitable corporation, was liable for the torts of
his monks as early as 1485 (Y.BB 48 Edward ITI, Mich. pl.
10; 49 Edward III, Mich. pl. 5; Holgsworth, History of Eng-
lish Law, 3rd Ed., Vol. 3, pp. 471, 473-4, 488; Pollock and
Maitland, History of English Law, 2nd. Ed., Vol 1, 433, 438,
435-6; Rec. 53-55). Since the abbott was a monk (Rec. 53)
he was civilly dead (Rec. 53) and was propertyless (Rec.
54) it follows that his liability for the torts of his monks
was against him in his corporate capacity and was satisfied
out of the assets of the monastic corporation (Encyclopedia
Americana, 1942 Ed., Vol. 1; Pollock and Maitland, His-
tory of English Law, 2nd Ed., Vol. 1, pp. 433, 492) (Rec. 55).
Consequently charitable corporations were liable in tort.
This conclusion is confirmed by the development of the
common law in England (1866) (Rec. 56), New Brunswick
(1890), Ontario (1915), and New Zealand (1935) (Rec. 55)
and in seventeen American jurisdictions: Rhode Island
(1879), New Hampshire (1906), Alabama (1915), Minne-
37
sota (1920), New York (1937), California (1939), Utah
(1940), Oklahoma (1940), Florida (1940), District of Co-
lumbia (1942), North Dakota (1946), Puerto Rico (1948),
Vermont (1950), Iowa (1951), Arizona (1951), Delaware
(1951), and Mississippi (1951) (Rec. 56-58); and by deci-
sions in eleven American jurisdicitions: Michigan (1907),
Indiana (1909), Virginia (1914), Nebraska (1918), North
Carolina (1929), Nevada (1929), Ohio (1930), Connecticut
(1931), Louisiana (1934), Washington (1940), and New
Jersey (1948) (Rec. 58-59) holding the charitable corpora-
tions liable to strangers, Contract or implied contract being
the basis on which non-liability to beneficiaries is predicated;
and as far as liability to judgment is concerned by decisions
in two other American jurisdictions, Tennessee and Colo-
rado (Rec. 47-48).
B. Immunity bars the enforcement of fundamental rights
and requires the person injured to make a contribution
to the charitable corporation against his will.
‘‘Every man’s person is sacred.’’ Bernard C. Gavit,
Blackstone’s Commentaries, 556-559. It follows that the
right of personal security is an absolute right, inherent and
inalienable, which does not need to be sacrificed by the laws
of society to public convenience and avails against all
persons whomsoever. Bernard C. Gavit, Blackstone’s Com-
mentaries on The Law, pp. 68-71; The Wabash, St. Louis
and Pacific Railway Company v. Shacklet (1883), 105 Til.
364, 379. ‘‘Every man has a property right in his own
person.’’ Walter H. Hamilton, Property According to
Locke, 1932, 44 Yale L.J. 864; Selected Essays on Consti-
tutional Law, Vol. 2, pp. 115, 119. It follows that one of
the primary rights of a citizen is indemnity against personal
injuries occasioned by the negligence of others, i.e., redress
in the ordinary forms of law—vindication by the regular
administration of justice in the courts of law—and that
this right of indemnity avails against all persons whomso-
ever. Bernard C. Gavit, Blackstone’s Commentaries on The
Law, pp. 76, 556-559; The Wabash, St. Louis and Pacific
Railway Company v. Schacklet (1883), 105 Ill. 364, 379;
Prouty v. City of Chicago, 250 Ill. 222.
Immunity bars the enforcement of these rights. It com-
pels ‘‘the persons damaged to contribute the amount of
their loss to the purpose of the * * * corporation’’ (Mulliner
v. Evangelischer Diakonniessenverein, 144 Minn. 392, 397-
8), which is ‘‘an unreasonable contribution to the charity,
against his [their] will,’’ (Silva v. Providence Hospital of
Oakland, 14 Cal. (2d) 762, 775-776) for ‘‘No conception of
justice demands that an exception to the rule of respondeat
superior be made in favour of the resources of a charity
and against the person of a beneficiary [or other person]
injured by the tort of a mere servant or employee function-
ing in that character.’’ Sheehan v. North Country Com-
munity Hospital (1937), 273 N.Y. 163, 164, and ‘‘If bene-
ficiaries and servants of charities, and third persons, are
killed or injured, or their property injured or destroyed,
and no recompense is given from any source, the result is
apt to be that a certain number of persons will become
public charges and a feeling of social injustice will be
implanted in the minds of the victim.’’ (Bogert, Trusts and
Trustees, .... Ed., Vol. 2, Sec. 401). It is ‘‘an anomaly’’
which is gradually being broken down and ‘‘this leaves
the steps untaken [to abolish it] as the more anomalous.’’
President and Trustees of Georgetown College v. Hughes
(1942), 130 F. 2d 810, 814-15. It is invidious and mis-
chievous.
C. Immunity is most unreasonable when applied against
a stranger to the institution or when immunity is lim-
ited to corporations not presently possessed of insur-
ance or other non-trust property.
39
It is particularly unreasonable when applied against a
stranger to the institution. In Henry W. Putnam Memorial
Hospital v. Allen, 34 F. 2d 927, 929-30 (C.C.A. 2d Vt.),
the court said: ‘‘irresponsibility should not be extended to
the tortious infliction of damage upon strangers. To hold
that a charitable institution, whose agent negligently runs
down a pedestrian upon the street, need not respond in
damages, although the circumstances are such as would
render any other defendant liable, seems to us a monstrous
doctrine [Italics ours]. * * * in our opinion no adequate
reason has been, or can be, advanced for allowing the
purpose of the settlor of trust funds to introduce into
the law a principle which to us, appears so anomalous and
unjust.’’ That it is particularly unreasonable in such a case
is shown by the fact eleven American jurisdictions which
erroneously enforce immunity against beneficiaries permit
recovery by a stranger (Rec. 58-59).
It seems particularly unreasonable to recognize any im-
munity where the State has already held that a private
charitable corporation having liability insurance coverage
or possessed of other non-trust property is subject to
judgment as Illinois did in Moore v. Moyle, 405 Ill. 555.
In such.case the argument for granting immunity is even
more specious than the argument for granting immunity
in all cases. The reasoning of the Illinois Appellate Court’s
opinion in this case (Rec. 6-24) with particular reference
to the last four paragraphs of the opinion (Rec. 23-24) is
logically unsound. The court presupposes that if a judg-
ment were rendered the trust property would be taken on
execution to satisfy the judgment and since the Supreme
Court of Illinois has held that the trust assets must be
protected it follows that the judgment cannot be entered.
But that is not true, it does not follow that because a judg-
ment is rendered that the judgment creditor is entitled to
execution. For example in Illinois there is no contingency
40
in which an execution may be awarded or issued against
a municipal corporation (Freeman, Law of Execution, 3rd
Ed., 1900, Vol, 1, pp. 537-538), and this is the general rule
in other jurisdictions (Ibid., pp. 67-68). See City of Chicago
v. Halsey, 25 Ill, 485. ‘‘The award of execution to produce
satisfaction constitute(s) no part of the judgment’’: the
judgment ‘‘simply contains the conclusion of ‘law upon the
facts proved, and leaves the party to his legal and appro-
priate writ to enforce it’.’”’ Freeman on Judgments, 4th
Ed., 1892, p. 3. It further presupposes that if execution
be awarded that the trust property could be taken to satisfy
the liability. The decision of the Supreme Court of Illinois
in Moore v. Moyle, 405 Ill. 555, is sufficient authority that
it could not. (Frankly, although it is not necessary to
a decision in this case, petitioners believe that in the
present case they have a right to execution and that any
limitation on the right to take the so-called trust property
would deprive them of their constitutional rights. But that
does not affect the unsoundness of the reasoning upon which
the opinion of the Illinois Appellate Court in thé instant
case is predicated.) The rule announced by the Illinois
Appellate Court makes the entry of judgment and the
amount of the judgment depend upon a factor totally alien
to the questions of fault, tort liability, damages and right
to satisfaction (Anderson v. Armstrong, 180 Tenn. 56;
St. Mary’s Academy of Sisters v. Solomon, 177 Colo. 463;
Shurleff v. Wiscasset, 74 Me. 140; Hopkins v. Clemson Agri-
cultural College, 221 U.S. 636) (Rec. 47-48).
A judgment establishes (a) the right to recover from
the defendant, (b) the amount of the damages sustained
by the plaintiff, (c) his right to supplemental proceedings
to discover and reach property belonging to the judgment
debtor to satisfy the liability, (d) preserves his right to
satisfaction until barred by statute or rule of common law,
41
and (e) preserves his right to revive the judgment. All
these benefits are denied the plaintiff under the rule estab-
lished by the Appellate Court of Illinois in this case.
For the reasons stated immunity in the instant case is
utterly unreasonable and discriminatory.
D. Illinois, therefore, in enforcing any immunity to judg-
ment deprives an injured person of his fundamental
right to personal security and property without due
process of law.
The purpose of the due process clause was to afford
immunity from any violation of fundamental right. The
first use of the phrase ‘‘life, liberty, and property with-
out due process of law’’ in this country appears in the
Fifth Amendment to the Constitution of the United States.
It had appeared in an act of October 12, 1692, Art. 5 (Acts
and Resolves of the Province of Massachusetts Bay, Vol.
I, Chap. 11, Art. 5, p. 40) of the General Court of Massa-
chusetts Bay. In England it appears in the statute of 28
Edward III (Statutes at Large of Great Britain and
Ireland, Vol. 1, p. 643). Before the adoption of the Fifth
Amendment colonial declarations of rights of the colonies
had for the most part used the phrase of Magna Charta,
“‘law of the land’’. It is now the law of the United States
that the phrases ‘‘law of the land” and ‘‘due process of
law’’ were intended to be synonymous (Greene v. Briggs,
1 Curtis (U.S.) 311; Murray v. Hoboken Land and Improve-
ment Company, 18 How. (U.S.) 272; Davidson v. New
Orleans, 96 U.S. 97; French v. Barber Asphalt Paving
Company, 181 U.S. 324; Twining v. New Jersey, 211 U.S.
78.
The phrase ‘‘due process of law’? was not limited by
anything short of the general purpose to afford immunity
from any violation of fundamental rights. Charles E.
42
Hughes, The Supreme Court of the United States, 1927,
pp. 185-188; Chicago B. & Q. R.R. v. Chicago, 166 U.S.
226, at 235; People ex rel. Joyce v. Strasheim, 242 IIl. 359.
Due process requires that every citizen shall have the
protection of the general rules that govern society—that is
established principles of private rights and distributive
justice. Webster’s argument, Dartmouth College Case, 4
Wheat. 518, 581-582; Bank of Columbia v. Okely, 4 Wheat.
235, at 244.
The fundamental rights protected by the due process
clause are determined from an examination of the prin-
ciples of the common law of England acted upon by the
colonists after the settlement of this country. In Murray’s
Lessee v. Hoboken Land and Improvement Co., 18 How.
(U.S.) 272 it was definitely recognized that the principles
of the common law are to be considered the acid test of
what procedure was or was not due process of law. (Mott,
Due Process, 245) Davidson v. New Orleans, 96 U.S. 97,
and Hurtado v. California, 110 U.S. 516, likewise so hold.
See also Westervelt v. Gregg, 12 N. Y. 202, In re Peterson,
253 U.S. 300.
Looking to the English law we find that under that law it
was said as early as the reign of Edward III (when the
phrase ‘‘due process’’ was first used) a statute would be
void if it was against common ‘right, and under Henry VI
(1422-1461) an act giving summary powers of confiscation
to a corporation of dyers in London was held to be against
the law of the land (Mott, Due Process, Sec. 20). By the
time of the Stuarts it was axiomatic that all trials must
conform to a regular form of legal procedure. James I
recognized this as essential to all judgments in a speech in
the Starre-Chamber in 1616 (C. H. McIlwain, Political Writ-
ings of James I, Vol. 1, pp. 326-340).
43
Therefore those laws which discriminate as to remedies
in the courts must certainly be considered contrary to due
process. Mott, Due Process, 293. While the Fourteenth
Amendment does not prevent a state from prescribing a
reasonable and appropriate condition precedent to the
bringing of a suit of a specified kind or class so long as the
basis of distinction is real and the condition imposed has
reasonable relation to a legitimate object (Jones v. Union
Guano Co., Inc., 264 U.S. 171, 44 S. Ct. 280, at 282), those
laws which discriminate as to remedies in the courts are
invalid. Forbes Pioneer Boat Line v. Board of Commis-
sioners, 258 U.S. 338, 42 S. Ct. 325.
Truaz v. Corrigan, 257 U.S. 312, condemned the legis-
lative action of a state which stripped an injured party of
all real remedy as being at variance with the principles of
due process, stating that the legislative power of a state
could only be exercised in subordination to the fundamental
principles of right and justice which the guarantee of due
process was intended to preserve, and that a purely arbi-
trary or capricious exercise was violative of due process.
It is also well settled that the action of state courts in
enforcing a substantive common-law rule formulated by
those courts may result in the denial of rights guaranteed
by the Fourteenth Amendment even though the judicial
proceedings in such cases may have been in complete ac-
cord with the most vigorous conceptions of procedural due
process. Shelley v. Kraemer, 334 U.S. 1, 14-18; C. B. & Q.
R.R. v. Chicago, 166 U.S. 226.
It follows that a state acting through its judiciary may
not deprive a person of all existing remedies for the en-
forcement of a right which the state has no power to
destroy without giving him some real opportunity to pro-
tect it. Brinkerhoff-Faris v. Hill, 281 U.S. 673.
44
The violation of these principles in the instant case was
called to the attention of the Supreme Court of Illinois
in the suggestions to the motion to vacate the order .dis-
missing the writ of error (Rec. 72-79), but that court ap-
parently did not note their application to this case.
We have established here as we did before that court
that the purpose of the due process clause was to afford
immunity from any violation of fundamental right; the
meaning of due process is that every citizen shall have the
protection of the general rules that govern society—that
is the established principles of private rights and dis-
tributive justice; the fundamental rights protected by the
due process clause are determined from an examination of
the principles of the common law of England acted upon
by the colonists after the settlement of this country; the
action of state courts in enforcing a substantive common-
law rule formulated by them may result in a denial of
rights guaranteed by the Fourteenth Amendment even
though the judicial proceedings in such cases may have been
in accord with the most vigorous conceptions of procedural
due process; and that a state acting through its judiciary
may not deprive a person of all existing remedies for the
enforcement of a right which the state has no power to
destroy without giving him some real opportunity to pro-
tect it.
The decision in Nicholson v. Good Samaritan Hospital,
145 Fla. 360 (1940) holds that the rule violates due pro-
cess of law and should be conclusive in this case since
our Constitution has a pravision similar to the one on which
the Florida decision is based. In that case an action was
filed against the hospital for the recovery of damages al-
leged to have been sustained by a patient as a result of the
negligence of the nurses employed by the defendant. The
declaration tested by the rules obtaining in ordinary cases
45
not involving charitable institutions showed a right of
action, but the defendant sought exemption from liability
on the ground that it was engaged in the business of con-
ducting a charitable hospital. The court said at page 367:
‘*While our Constitution exempts charitable corpora-
tions from taxation, nothing appears in the Constitu-
tion, statutes or judicial decisions of this State with
regard to the exemption of charitable institutions from
liability for the torts of their servants. However, we
do find set out in the organic law of our State the
following:
‘* All courts in this State shall be open, so that every
person for any injury done him in his lands, goods, or
person or reputation shall have remedy, by due course
of law, and right and justice shall be administered
without sale, denial, or delay.’ ’’ (Italics supplied.)
Declaration of Rights, Sec. 4, Constitution.
‘*Thus it would appear that the public policy of this
State as enumerated by its Constitution, is to put
justice ‘by due course of law’ above or before charity.
As stated by the Court in Sheehan v. North County
Community Hospital, 273 N. Y. 163, 7 N.W. (2d) 28:
‘. . . to impose liability is to beget careful manage-
ment; and that no conception of justice demands that
an exception to the rule of respondeat superior be
made in favor of the resources of a charity and against
the person of a beneficiary injured by the tort of a
mere servant or employee functioning in that char-
acter.’
‘*There is no doubt but that the public has an in-
terest in the establishment and maintenance of chari-
table institutions, whose beneficent value is generally
recognized and appreciated, but it also has an interest
in obliging corporations undertaking the performance
of charitable duties, vitally affecting the lives and
health of our citizens, to perform them carefully, and
therefore the public also has an interest in this matter
of exempting a charitable corporation from liability
for its negligence. A charitable institution should be
just before being charitable or generous.
‘‘The quotation from Sheehan v. North County Com-
munity Hospital, supra, recognizes the fact that to
46
exempt charitable institutions from liability for the
torts of their servants is to create an exemption to the
well-founded and salutary doctrine of respondeat
superior, which doctrine is in this State so much a part
of ‘due course of law’, referred to in the above quoted
section of our Constitution, as to require its recognition
in eases of this kind in the absence of legislation to
the contrary. There is no legal principle which would
justify this Court in making such an exception, in view
of the above quoted constitutional provisions. The
creation of such exemption is a legislative preroga-
tive.’’
These principles of the common law have the sanction of
settled usage in England and in this country. They are
part of the general rules that govern society, that is, they
are established principles of private right and distributive
justice and are, therefore, part and parcel of what is deemed
‘*due process of law.’’
‘*Tt seems to us that a statute which declares in terms
and without more that the full and exclusive title of a
described piece of land, which is now in A, shall be and
is hereby vested in B, would if effectual, deprive A of
his property without due process of law.’’ Davidson v.
New Orleans, 96 U.S. 102.
In Silva v. Providence Hospital of Oakland (1939), 14
Cal. (2d) 762, 775-776, 97 P (2d) 798, 804-805, the court
said:
‘*To require an injured individual to forego com-
pensation for harm, when he is otherwise entitled
thereto, because the injury was committed by the serv-
ants of a charity, is to require him to make an un-
reasonable contribution to the charity, against his will,
and a rule of law imposing such burdens cannot be
regarded as socially desirable nor consistent with
sound policy.’’
In Mulliner v. Evangelischer Diakonniessenverein (1920),
144 Minn. 392:
‘*We do not approve the public policy . . . which
would compel the persons damaged to contribute their
= Oe RENTS err yy ae
47
loss to the purpose of even the most worthy corpora-
tion.’’
In Hopkins v. Clemson Agricultural College (1911), 55
U.S. Sup. Ct. R., L Ed. p. 890 the court said:
‘“‘If the state had in so many words granted the
college authority to take or damage the plaintiff’s
property for its corporate advantage without compen-
sation, the Constitution would have substituted liability
for the attempted exemption.’’
Yet here petitioners who have shown that the verdict in
their favor was ripe for judgment according to the course
and usage of the common law, that it is a fundamental
right because it is the right of personal security itself that
is involved which avails against all persons whomsoever,
that there was no error in the trial which would invalidate
that verdict and that defendant was not immune from
judgment in an action in tort, find that the courts of Illi-
nois have finally barred the door to the correction by
further appeal of the error of denying them judgment and
thus finally deprived of their constitutional rights by the
State of Illinois. They are thus compelled to seek the
vindication in this Court of their right to due process of
law under the Fourteenth Amendment.
E. The State of Illinois, therefore, in enforcing any Im-
munity to Judgment denies to an injured person the
equal protection of its laws.
Section 1 of the 14th Amendment provides: ‘‘No State
shall * * * deny to any person within its jurisdiction the
equal protection of the laws.’’ Mr. Justice Matthews, in
Yick Wo v. Hopkins, 118 U.S. 356, 369, said this was ‘‘a
pledge of the protection of equal laws.’’ Chief Justice Taft,
in Trauzx v. Corrigan, 257 U.S. 312, 93A said: ‘‘Our whole
system of law is predicated on the general fundamental
principle of equality of application of the law. ‘All men
are equal before the law,’ ‘This is a government of laws
and not of men,’ ‘No man is above the law,’ are all maxims
showing the spirit in which * * * courts are expected to
* * * apply laws. But the framers and adopters of this
amendment were not content to depend on a mere minimum
secured by the due process clause, or upon the spirit of
equality which might not be insisted on by local public
opinion. They therefore embodied that spirit is a specific
guaranty.’’ He went on to say: ‘‘The guaranty was aimed
at undue favor and individual or class privilege, on the
one hand, and at hostile discrimination, on the other. It
sought an equality of treatment of all persons even though
all enjoyed the protection of due process. * * * Thus the
guaranty was intended to secure equality of protection
not only for all but against all similarly situated. Indeed,
protection is not protection unless it does so. Immunity
granted to a class however limited, having the effect to
‘ deprive another class however limited of a personal or
property right, is just as clearly a denial of equal protec-
tion of the laws to the latter class as if the immunity were
in favor of, or the deprivation of right permitted worked
against, a larger class.’’ (Italics ours.) He concluded: ‘‘the
equality clause * * * forbids the granting of equitable
relief to one man and denying of it to another under like
circumstances and in the same territorial jurisdiction * * *
It means that no person or class of persons shall be denied
the same protection of the laws, which is enjoyed by other
persons or other classes in the same place and under like
circumstances.’’ (Italics ours.)
In Frost v. Corporation Commission (1928), 278 U.S.
515, 522, this Court said: ‘‘The purpose of the clause in
respect of equal protection of the laws is to rest the rights
of all persons upon the same rule under the same circum-
stances. Louisville Gas Co. v. Coleman, 277 U.S. 32, 37.’’
(Italics ours.) As one state court has said : ‘“The words seem
so plain as to exclude the need of refinements in interpreta-
tion. Though prohibitory, they contain a necessary im-
plication of a positive right—the right to an equality
before every law, the right of the citizen to be free in any
State, from unjust discrimination between him and other
persons, as to legal rights and duties. Such is the plain
meaning of the amendment. Strauder v. West Virginia, 100
U.S. 303.’ (Italics ours.) State of Maine v. Cohen (1935),
133 Me. 293, 300.
Petitioners’ federal right to the equal protection of the
laws has been violated by the State of Illinois. Immunity
to liability in tort has been granted to a narrow class
consisting of private charitable corporations not presently
endowed at the time of trial Par liability insurance or
other non-trust funag tay tHe ‘immunity from suit is a
high attribute of sovereignty—a prerogative of the state
itself’’ which creates “‘a privileged class, free from liability
for wrongs inflicted or injuries threatened’”’ for corpora-
tions ‘‘must be liable to the law, unless they are put above
the law.”’ (Italies ours.) (Hopkins v. Clemson Agricultural
College, 221 U.S. 636), (b) the effect of which is to deprive
another class consisting of persons who have been injured
by the corporation not presently endowed at the time of
trial with liability insurance or other non-trust property of
their right to judgment on a verdict (personal security and
property) in a situation in which all other private persons
individual or corporate would be liable including charitable
corporations presently possessed at the time of trial with
liability insurance or other non-trust funds (Moore v.
Moyle, 405 Til. 555) and even private charitable corpora-
tions not presently endowed with lability insurance or
other non-trust property which do not plead immunity
(Marabia v. Mary Thompson Hospital, 309 Ml. 147) ) (c) and
50
make such corporation liable to judgment in tort only when
it chooses to be so—for the holding of non-trust property,
or the carrying of liability insurance (and the amount
thereof), whether intentional or otherwise, are matters of
voluntary action—thus in effect permitting the corporation
to be a judge in its own cause (d) although such corpora-
tion could itself maintain an action in tort against a natural
person by cross-complaint or otherwise and secure a judg-
ment without restriction, and (e) the granting of relief
against a master under the maxim respondeat superior in
all other cases and the denial of that relief when the
master is a private charitable corporation not presently
endowed with liability insurance or other non-trust prop-
erty at the time of trial is utterly unreasonable because the
presence or absence of such assets is, as has been shown,
an irrelevant and improper consideration and immunity
deprives the injured person of his right to personal
security and indemnity for its violation.
It follows that under the decisions of this Court and
other courts that the State of Illinois in enforcing immunity
under the circumstances of this case unjustly discriminates
against persons injured by the torts of private charitable
corporations not presently possessed of liability insurance
or other non-trust property at the time of trial. Since, as
has been shown immunity of charitable corporations was
not recognized by the common law of England at the time
this country was founded and was not part of the common
law of Illinois or other state (or colony) at any time prior
to July 28, 1868, it is not part of the old common law of the
land, it cannot be tolerated on the ground it is due process
of law. Consequently, when the immunity rule was en-
forced against petitioners in the instant case the State of
Illinois denied petitioners their federal right to the equal
protection of the law.
51
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted. Counsel have shown:
(a) That there is a final judgment or decree;
(b) That the decision sought to be reviewed is by the
or court of the state in which decision could
be had;
(c) That the case presents a substantial federal ques-
tion;
(d) That the federal question sought to be reviewed
was properly raised and preserved in the state
courts ;, and
(e) That the decision of the highest court of the state
does not rest upon a state ground which independ-
— and adequately supports the judgment or
ecree.
It follows there is no jurisdictional impediment.
Respectfully submitted,
Hvueu M. Marcuerr,
Chicago, Il.
Davip F. Marcuetr, Jr.
Chicago, II.
Watter F. Dopp,
Chicago, Ill.
Husert L. Wu,
Chicago, Ill.
Of Counsel.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.